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McCloskey v. McCloskey

Court of Chancery of Delaware

September 3, 2014

JOHN A. McCLOSKEY, personally and as Executor of The Estate of Edward McCloskey, THE ESTATE OF EDWARD McCLOSKEY, and JOSEPHINE GILLESPIE, (as beneficiary and nominal Respondent), Respondents.

Date Submitted: June 12, 2014

David J. Weidman of Sergovic, Carmean & Weidman, P.A., Georgetown, Delaware; Attorney for Petitioner.

"J" Jackson Shrum of Werb & Sullivan, Wilmington, Delaware; Attorney for Respondents.




This action involves a claim that a decedent made an enforceable oral agreement to dispose of property after his death in a way that deviates from a facially valid written will. Given the nature of such a claim, where the testator will not be able to tell his side of the story and there is a heightened risk of fabricated evidence, Delaware law requires that the claim be proven by clear and convincing evidence.

On April 24, 2014, after conducting a five-day trial, Master LeGrow issued a well-reasoned final report in which she concluded that petitioner Richard A. McCloskey had proven by clear and convincing evidence that his father promised to leave him a home and surrounding property in Felton, Delaware upon his father's death in exchange for petitioner's commitment to pay for repairs and improvements to the property, which petitioner did over a span of forty-seven years from 1963 to 2010. The Master thus recommended that the Court enter an order requiring the father's estate to convey title to the property to the petitioner despite the existence of a later-signed will bequeathing the property in a different manner.

The Master also recommended that the Court rescind a deed the father signed in 2008 conveying part of the property to one of the respondents, John A. McCloskey, in view of the pre-existing agreement the father had made with petitioner. Separately, the Master recommended this relief because the father had been diagnosed with dementia several years earlier and lacked the capacity to transfer the property.

Respondents filed numerous exceptions to the Master's final report. Although the respondents claim their exceptions largely turn on points of law, in reality they mostly challenge the application of the relevant legal standards to the evidence of record. Given the nature of the exceptions taken and the de novo standard of review that governs my consideration of the Master's recommendations, I reviewed the videotape and written transcript of the entire five-day trial as well as the documents admitted into evidence to make my own assessment of the record. Having done so, I independently have reached the same conclusions as the Master, overrule the respondents' exceptions and enter judgment in petitioner's favor in accordance with the Master's recommendations.


The Master's final report set forth a thorough recitation of the factual background of this case. I agree with that recitation and repeat it here with some modifications.

A. Family Background

The Decedent, Edward McCloskey ("Edward"), [1] was the father of five children. His oldest son, Richard McCloskey ("Richard"), is the petitioner in this action. His youngest son, John McCloskey ("John"), is named as a respondent in this action in his personal capacity and in his capacity as executor of Edward's estate (the "Estate"). Edward's three other children are Josephine Gillespie ("Josephine"), Ronald McCloskey ("Ronnie"), and Robert McCloskey ("Robert").

Edward was married only once, to Mary McCloskey ("Mary"), from whom he divorced in 1963. Richard and his wife, Wanda McCloskey ("Wanda"), have two children: Rusty and Randy. John is married to Linda McCloskey ("Linda"). Most of the members of the McCloskey family are involved in farming in various capacities.

B. The Property

The property in dispute consists of Edward's former single-family home and some farm buildings located on approximately 48 acres of land at 957 Midstate Road in Felton, Delaware (the "Property"). In 2011, the Property was appraised at $328, 000 without an irrigation system and $386, 000 with the irrigation system included.[2]

All of Edward and Mary's children were born in the house on the Property. In 1973, John built a home next to the Property on land given to him by Edward.

Richard married Wanda in 1959, shortly after graduating from high school, and the couple moved into a two bedroom mobile home Richard purchased. The mobile home was two to three years old and in good shape.[3] When Edward and Mary divorced in 1963, Edward remained in the Property with his elderly father, Jerry McCloskey ("Jerry"). The divorce, and the manner in which Edward ejected Mary from the Property, caused a division among the McCloskey children, with Richard taking Edward's side and the four remaining children siding with Mary.[4]

C. Richard Moves into the Property

Shortly after the confrontation during which Edward kicked Mary out of the Property, Edward asked Richard and Wanda to move into the Property to help Edward take care of the home and Edward's father, Jerry, who was 77 years old.[5] The testimony is undisputed that neither Edward nor Jerry showed an interest in performing the daily chores associated with keeping a home, including cooking, cleaning, or laundry. Jerry also required additional care as he aged.[6]

Although Richard and Wanda had a home that was in better condition than the house on the Property, [7] they agreed to move in with Edward and Jerry to provide assistance. Richard and Wanda did not pay rent, but, in addition to her full-time job, Wanda performed all the necessary domestic chores, and Richard and Wanda bought the food for the household.[8] Beginning around 1975, Richard and Wanda also paid the utilities in the home.[9]

The home on the Property was in disrepair when Richard and Wanda moved into it. Although Edward had money, he did not spend his money to maintain or improve his house. Shortly after they moved into the house, Richard and Wanda began discussing with Edward various repairs or improvements that were necessary or desirable. Richard and Wanda credibly and consistently testified that on each occasion when a significant repair or improvement was made, Edward instructed Richard and Wanda that they should pay the associated costs because the Property would belong to Richard when Edward died.

For example, Richard testified as follows:

Q. Did you make any improvements to the 957 Midstate Road property after you moved in, in 1963, let's say within the first seven years?
A. Yes. We built a patio, put on a porch, put siding on the house, and had to put a French drain into the septic system.
Q. And who paid for those improvements?
A. My wife and I.
Q. And why did you pay for those improvements?
A. Every time we wanted to do something to the property, I would always ask my father first, because it was his property. And he would always say: "Well, go ahead and do it. It's all right. And pay for it, because it's going to be yours anyway."[10]

Wanda testified similarly to Richard:

Q. … Did you ever hear Edward McCloskey personally promise this property at 957 Midstate Road to Richard?
A. Yes.
Q. And can you tell the Court what was discussed, and if it was more than one time, how many times you can recall that being discussed?
A. It was many times. When we did repairs, remodeling, my husband would tell my father-in-law, "We need a new roof."
And he would say, "Well, you go ahead, put it on, pay for it, because this farm will be yours when I'm gone.[11]

Both Richard and Wanda testified they understood Edward's instructions to mean that the property would be Richard's, not that he would have a life estate in the property.[12] On two occasions in the 1960's, Wanda's brother, Chuck Holliday, overheard Edward promise Richard the property when Richard asked Edward about building a structure on the Property.[13]

Over the next ten years, Richard and Wanda paid the costs associated with closing in the front porch, adding a downstairs bathroom, replacing the roof, adding a cement patio, installing siding, replacing all the upstairs windows and installing a French drain, along with substantial electrical work and the addition of electric heat upstairs and downstairs.[14] Richard and Wanda retained many of the receipts associated with these expenses.[15] Wanda also maintained a ledger in which she contemporaneously recorded the repairs and improvements they made and the associated costs for the period from 1971 to 1997.[16] Edward did not contribute to the cost of the repairs or improvements.[17]

D. The 1977 Will

Edward executed his first will in 1977 (the "1977 Will"). At Edward's request, Richard made an appointment with a local attorney, who drew up the will. The 1977 Will left the Property to Richard in fee simple absolute, devised a separate farm (the "Turner Farm") to John, and divided the residue of Edward's Estate between Ronnie, Josephine, Robert, and John.[18] The 1977 Will named Richard and John as co-executors. Richard was aware of the contents of the 1977 Will because he sat in on Edward's meeting with the attorney. After the meeting, Richard informed John of the bequests Edward made in the will, particularly those involving the two farms.[19]

During this period, John worked for Richard in his various farming operations, and John generally was dissatisfied with the pay and treatment he received from Richard, particularly Richard's refusal to grant him vacation at certain times.[20] Around 1980, John quit working for Richard.[21]

Beginning in the mid-1970s, Jerry's mental faculties began to decline significantly, and he required additional care and monitoring, which Richard and Wanda undertook.[22] Jerry passed away in 1981. After Jerry's death, Edward asked Richard and Wanda to continue living in the Property and assisting Edward.[23] Although Richard and Wanda owned a separate home, and could have moved out of the Property, they acceded to Edward's request and remained there to care for him and for the Property.[24] Wanda and Richard discussed moving, but Richard reminded Wanda "[w]e've been promised this place, and I hate to move away and lose this, what money we've got invested here."[25]Over the next decade, Richard and Wanda continued to pay for repairs and improvements to the Property, always with Edward's permission and always with his instruction that they should bear the costs because the Property would belong to Richard when Edward died.[26] The repairs and improvements included, among other things, installing a new ceiling in the dining room, remodeling an upstairs bathroom and bedroom, installing central air upstairs, and repairing the roof.[27]

E. The 1991 Codicil

In 1991, Edward executed a codicil to his 1977 Will (the "1991 Codicil"). The 1991 Codicil reaffirmed Edward's intention to leave the Property to Richard in fee simple, and also named Wanda, Rusty, and Randy as contingent beneficiaries of the bequest in the event Richard predeceased Edward.[28] As in the 1977 Will, Edward devised the Turner Farm to John, and in the 1991 Codicil named John's wife and children as contingent beneficiaries of that bequest. The primary revision to the 1977 Will was the removal of John as a residuary beneficiary of Edward's Estate; the 1991 Codicil provided that the residue of the Estate would be divided between Ronnie, Robert, and Josephine. Edward did not bring Richard and Wanda with him when he made the 1991 Codicil, but he "brought it home, " "showed it to [Richard and Wanda]" and said "[r]ead it and put it in the safe."[29]

In the mid-1990s, Richard and Wanda observed some changes in Edward's personality and mental acumen. For example, he became confused at times, and on one notable occasion started a rototiller on a stone driveway.[30] Edward also began to exhibit some resentment or hostility toward Wanda, possibly stemming from an incident in which he mistook Wanda for his wife and kissed her.[31] The trial record included a note dated April 25, 1997 and handwritten by Edward. In the note, Edward recorded that Wanda had yelled at him around 5:15 that evening.[32] This note is consistent with testimony at trial describing Edward's behavior as increasingly angry and somewhat paranoid by this period of his life.

Richard and Wanda, however, continued to reside with Edward and provided him care. During this period, Richard and Wanda also paid for improvements and repairs to the Property, including renovating the kitchen, installing an irrigation system and barn on the land, and installing a new roof.[33]

F. The 1997 Will

Shortly after he wrote the April 25, 1997 note, Edward began discussing with John changes to Edward's will, which John memorialized in handwritten notes dated in May 1997.[34] These notes reference leaving "life time rights" in the Property to Richard, as opposed to the full disposition provided for in the 1977 Will and 1991 Codicil. Although the notes were taken by John, they strangely read in the first person as if they were written by Edward. When questioned about ...

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